Eagle River Memorial Hospital Employees, Local 1311, AFSCME, AFL-CIO,
hereinafter the Union, requested that the Wisconsin Employment Relations
Commission appoint a staff arbitrator to hear and decide the instant dispute
between the Union and the Eagle River Memorial Hospital, hereinafter the
Employer, in accordance with the grievance and arbitration procedures contained
in the parties' labor agreement. The Employer subsequently concurred in the
request and the undersigned was appointed to arbitrate in the dispute. A hearing
was held before the undersigned on May 31, 1989 in Eagle River, Wisconsin. There
was no stenographic transcript made of the hearing and the parties submitted
post-hearing briefs in the matter by July 10, 1989. Based upon the evidence and
the arguments of the parties, the undersigned makes and issues the following
Award.

ISSUE

The parties were unable to agree on a statement of the issue.

The Union would state the issue as being:

Did the hospital have just cause to terminate Gloria Wedow?

At hearing the Employer framed the issue as follows:

Do the facts support a falsification of time card charge and
ultimate
discharge?

The undersigned concludes that the Union's statement of the issue adequately
frames the issue to be decided.

CONTRACT PROVISIONS

The following provision of the parties' 1987-1989 Agreement is cited:

ARTICLE 4 - DISCIPLINARY ACTION

No employee shall be reprimanded, suspended, or discharged
except for
cause.

4.01 An employee may be discharged for the following
offenses without
warning or notice:

The Employer maintains and operates hospital facilities in Eagle River,
Wisconsin and in January of 1989 began the operation of a clinic in Land O'
Lakes. The Grievant had been employed by the Employer since August of 1984 as
a Nursing Assistant at the hospital. Late in 1988 the Grievant posted for, and
was awarded, the Medical Assistant position at the Land O'Lakes Clinic and began
being trained for the position. The Grievant began working as a Medical
Assistant at the Land O' Lakes Clinic in mid-January of 1989. Other than the
physician, Dr. Littrell, the Grievant was the only employe at the Clinic. At the
time in question the Grievant's duties included answering the telephone and
taking messages at the Clinic. When the Clinic is not open or when the Grievant
was too busy assisting patients or the physician, the phone would be switched
over to the hospital - the phone rings twice at the Clinic and then the call is
automatically transferred to the hospital.

The Land O' Lakes Clinic is open 1:30-4:30 p.m. on Fridays and the Grievant
was required to be there at 1:00 p.m. The day in question was a Friday,
February 3, 1989, and there is a dispute as to what time the Grievant reported
to work - the Grievant asserting she was at the Clinic at 1:00 p.m., but was busy
doing other things and forgot to switch the phone over from the hospital to the
Clinic until approximately 1:15 or 1:20 p.m., and the Employer asserting that she
earlier admitted to not coming in till 1:15 p.m. after being questioned about it
by the Employer's Comptroller, Pat Campau.

Campau questioned the Grievant after Rozga, the Ambulance Manager at the
hospital, informed Campau that she had tried to contact the Grievant at the
Clinic on the day in question for Dr. Littrell and had been unable to reach her
till approximately 1:25 p.m. On February 6th or 7th Campau discussed with the
Grievant the matter of switching the phone over as soon as she comes in and her
failure to answer Rozga's call on February 3rd. The Employer asserts that is
when the Grievant admitted she had not come in until 1:15 p.m. on February 3rd.
The Grievant subsequently submitted her time card for the period that included
the day in question and indicated a 1:00 p.m. start on that date. The employes
fill out their own time cards and submit them to their supervisor for review, and
in the Grievant's case that was Campau. Upon receiving the Grievant's time card
on February 14, 1989, and noting it stated she had started at 1:00 p.m. on
February 3rd, Campau discussed the matter with the Hospital's President, Pat
Richardson, and they decided to terminate the Grievant for falsifying her time
card. Campau then met with the Grievant on February 14, 1989 and asked her about
the time card. There is some dispute as to what the Grievant said at that
meeting and what she intended by what she said; however, Campau gave her a
written notice of her termination for falsifying her time card.

The Grievant was terminated on February 14, 1989 and she subsequently
grieved her termination. The parties were unable to resolve their dispute and
proceeded to arbitration on the grievance before the undersigned.

POSITIONS OF THE PARTIES

Union:

The Union takes the position that there is no hard evidence that the
Grievant was not at her worksite at 1:00 p.m. on February 3, 1989 and, therefore,
she cannot be said to have falsified her time card by indicating on the card she
was present and working at 1:00 p.m. on that date. The Union cites Just Cause:
The Seven Tests, Adolph Koven and Susan Smith (Coloracre Publications 1985), and
applies the tests cited therein in this case. Regarding the first test, proper
notice, the Union concedes that the employes are aware that falsifying a time
card is grounds for discipline. The second test is whether the rule is
reasonable and the Union, while conceding the rule is reasonable, asserts it has
been unreasonably applied - the result being the same as if the rule was
unreasonable. In this regard the Union asserts that the Employer alleges that
the evidence indicates that the Grievant was in the habit of filling her time
card out ahead of time. Even assuming arguendo that the Grievant was not on the
job at 1:00 p.m., it is possible she had filled her card out in advance and not
realized the mistake. Without further investigation, the Grievant's termination
was an unreasonable application of the rule to accomplish a predetermined end.
The Union contends that the third test, investigation, was not satisfied, since
the only investigation prior to the decision to terminate the Grievant was
Campau's phone call to her on February 6th. The Grievant denies having admitted
at that time that she arrived at work at 1:15 p.m. on February 3rd, rather, she
admitted she did not turn on the phone till 1:15 p.m. The Union finds it odd
that if the Grievant admitted being late and if this failure to answer the phone
caused the physician such consternation, that there is no mention in the record
of any discussion of tardiness. The one conversation, which represents the total
investigation, led to the discharge on totally different grounds. Thus, there
was no investigation. The fourth test is whether the investigation was fairly
conducted and, the Union asserts, Campau intended to terminate the Grievant on
February 14th without any investigation. The fifth test is proof the employe is
guilty of the misconduct alleged, and the burden is on the Employer to prove
guilt by hard facts and not conjecture or suspicion. The only fact proved
according to the Union is that the phone was not turned on till 1:15 p.m. on
February 3rd. As to the Grievant's alleged offer to change the time on the card
at the February 14th meeting with Campau, that offer was in reference to 11:15
on the discharge notice that should have read 1:15. The Grievant was not
discharged for filling her time card out in advance or for failing to turn the
phone on in a timely manner, but for falsifying her time card, and the Employer
has failed to meet its burden of proof on that charge. The last two tests,
equality of treatment and penalty are not involved according to the Union. The
Union contends that the Employer has failed to meet four of the seven tests of
just cause and, therefore, has not met its contractual requirement in the
termination of the Grievant. The Union requests as relief that the Grievant be
reinstated to her position and made whole.

Employer:

It is the Employer's position that the termination of the Grievant was
justified based on "a clear and flagrant case of a falsification of a time card."
In support of its position, the Employer first asserts that the Grievant was well
aware of the time card procedures and the need for employes to keep their own
time as there is no time clock. This is a "trust system" where the employe is
expected to be honest in submitting the time worked and is in turn paid for that
time. The Employer asserts that when first asked about the day in question the
Grievant stated she did not report to work till 1:15 p.m. It was not till the
grievance was filed on her discharge that she first indicated she had been at
work at 1:00 p.m., but performing other duties till 1:15 p.m. Her first
statement was four days after the day in question, while the grievance statement
came eighteen days later. It is contended that the Grievant's first statement
was correct and is the one that must be utilized in deciding this case. Reliance
on that statement leaves one no choice but to uphold the termination, according
to the Employer. The Employer also cites a number of arbitration awards
involving the falsification of records to support its contention that the penalty
of discharge was not too severe in this case. It is argued that the Employer's
time card system requires absolute honesty on the part of the employes and that
utilizing anything less than discharge would remove the necessity for complete
honesty and would not maintain the "integrity of the system." Another case cited
by the Employer deals with the credibility of testimony and the factors that
should be considered in determining credibility. The fact that the Grievant now
testified, contrary to Campau, that she never said she did not come in till 1:15
p.m., does not mean that Campau's testimony in that regard is not to be credited.
The Employer reiterates that the Grievant subsequently changed her story and
claimed to be at work at 1:00 p.m. on February 3rd, but that she could not recall
at hearing specifically what duties she was performing between 1:00 p.m. and 1:15
p.m. that day, even though it had only been four months prior to the hearing.
According to the Employer, the Grievant also testified she called Rozga that day,
but the note Rozga sent to Campau (Employer Ex. 6) is clear that Rozga called
her. Hence, Campau is to be credited. The Employer concludes that this was a
case of falsification of a time card, which under the Agreement, calls for
immediate discharge.

DISCUSSION

It is first necessary to determine whether or not the Grievant falsified her
time card as alleged. To make that determination it is also necessary to decide
whether the Grievant reported to her work site on February 3rd at 1:00 or at
about 1:15 p.m. In that regard, there is conflicting testimony from Campau and
the Grievant as to whether the Grievant had earlier admitted to Campau that she
had not come in till 1:15 p.m. on February 3rd.

Contrary to the Union's assertion, the fact that there is conflicting
testimony from the Grievant and her supervisor as to what the Grievant said does
not mean that there is no evidence, rather, it means that a credibility
determination must be made. For the following reasons it is concluded that
Campau's testimony is to be credited. First, Rozga testified that she called the
Clinic at 12:45 p.m. on February 3rd, and every five minutes thereafter, until
the Grievant answered at approximately 1:25 p.m. Campau testified that even when
the phone is switched over to the hospital, it still rings twice at the Clinic.
The Grievant testified she could hear the phone ring anywhere in the Clinic
except the storeroom in the rear of the building, but that she did not hear the
phone prior to her talking to Rozga on February 3rd. The Grievant testified that
she might have been outside checking the mail or shovelling snow or that she
might have been in the storeroom when the phone rang, but it seems unlikely that
if Rozga was calling every five minutes that the Grievant would not have heard
the phone ring at some time prior to 1:15. Secondly, there is no dispute that
when confronted with her time card and discharge notice on February 14th, the
Grievant did not assert that she had in fact been at work at 1:00 p.m. on
February 3rd. While the passage of time and the tendency to rationalize could
explain the differing recollections of what the Grievant said to Campau on
February 6th, if the Grievant in fact felt she had been at work at 1:00 p.m. on
February 3rd and had so stated the week before when questioned by Campau, it
seems reasonable to assume she would have reiterated that point at the time she
was informed she was being discharged for indicating a 1:00 p.m. starting time
on her time card. Campau's unrebutted testimony was that when shown her time
card and given her discharge notice the Grievant offered no excuse or reasons,
but only said "I'll fix it." The Grievant testified that her offer to "fix" or
"correct" the time was in reference to "1115" on her discharge notice. Her
testimony in that regard is not persuasive, since the notice indicated "1:15" and
not "1115". Moreover, even if the Grievant could have misread the colon
punctuation as a "1", it seems unlikely that she would have offered to correct
the notice of her discharge drafted by her supervisor. The undersigned considers
it more likely that the Grievant was referring to her time card when she offered
to "fix" it.

For the foregoing reasons it is concluded that Campau's testimony as to what
the Grievant told her on February 6th, regarding when she came to work on
February 3rd, is to be credited. For those same reasons it is further concluded
that the Grievant did not report for work before 1:15 p.m. on February 3rd.

The Union also poses the question that even assuming arguendo that the
Grievant did not come to work till 1:15 p.m. on February 3rd, is it not possible
that she simply had filled out her time card in advance and failed to later
realize her mistake. A review of the Grievant's time card (Employer Ex. 3) makes
such an explanation unconvincing. While the evidence indicates that the Grievant
at times filled out her time card in advance, her time card shows that on the day
in question she indicated a "1300" starting time, but she had changed her
quitting time from her original entry to "1715" for that date. In other words,
she corrected her quitting time, but not her starting time for February 3rd. It
seems unlikely that she would remember to correct one entry, but not the other
for that date.

The Union also contends that the Employer failed to adequately investigate
the matter before deciding to terminate the Grievant. Campau's testimony that
the Grievant told her on February 6th that she had not come in until 1:15 p.m.
on February 3rd has previously been credited. Therefore, on February 14th,
when
Campau received the Grievant's time card indicating a 1:00 p.m. start on
February 3rd, she possessed a prior admission by the Grievant that she had
started work at 1:15 p.m. and the Grievant's time card indicating a 1:00 p.m.
start and the number of hours worked for that day based on a 1:00 p.m. start.
Further investigation was not really necessary at that point. Campau also
testified that if the Grievant, when confronted, had come up with a valid reason
for the discrepancy on the time card, she would have torn up the discharge
notice; however, the testimony shows that the Grievant did not offer any reason
at that time. The fact that Campau was, in the Union's words, "investigator,
chief witness, judge, and jury," is not a valid criticism, as it is often the
case that the supervisor is the person responsible for investigating allegations
or complaints, as well as the person responsible for, or involved in, making the
decision whether to discipline the employe. In this case Campau first discussed
the matter with the Employer's President and they then decided to terminate the
Grievant.

While the penalty of discharge seems a stiff price to pay for claiming
fifteen minutes the employe was not entitled to as time worked, the parties
bargained a specific provision in their Agreement that recognizes there is just
cause to discharge an employe for falsifying his/her time card. There is no
claim, nor evidence, of disparate treatment as to the enforcement of the
provision or as to the imposition of the penalty. Therefore, having concluded
that the Grievant did falsify her time card as to February 3, 1989, it is
concluded that the Employer had just cause to discharge the Grievant.

Based upon the above and foregoing, the evidence, and the arguments of the
parties, the undersigned makes and issues the following